Metis like Leonard Laboucan, Kelly Poitras and their son Kyell Poitras, 3, will now be recognized by the federal government under the Indian Act, making them eligible for housing, health care and education funding until now only available to on-reserve status Indians. A Federal Court announced in Ottawa Tuesday that roughly 600,000 Metis and non-status aboriginals are considered “Indians” under the Constitution.Jenelle Schneider
/ Vancouver Sun

Attawapiskat Chief Theresa Spence holds hands with fellow hunger striker Jean Socks as she stands beside supporter Danny Metatawabin during a press conference outside her teepee on Victoria Island in Ottawa on Friday, January 4, 2013. A court ruling this morning is expected to clarify the relationship between Ottawa and the more than 600,000 aboriginal people who live off-reserve. THE CANADIAN PRESS/Sean Kilpatrick

Thanks to a single court decision, the federal government’s responsibilities for Canada’s aboriginal peoples have suddenly become a whole lot larger.

After more than 13 years of legal wrangling, the Federal Court ruled on Tuesday that Metis and non-status Indians are indeed “Indians” under a section of the Constitution Act, and fall under federal jurisdiction.

The decision adds to the mounting pressure on Prime Minister Stephen Harper to rethink the way Canada deals with native populations, who are among the most impoverished in Canada.

The ruling helps to clarify the relationship between Ottawa and the more than 600,000 aboriginal people who are not affiliated with specific reserves and have essentially no access to First Nations programs, services and rights.

“This is huge and it ends the denial of aboriginal birthrights that has existed for far too long among off reserve Metis and non-status Indians,” said Betty Ann Lavallee, national chief of the Congress of Aboriginal Peoples. “Today is a very emotional day for me and a very hopeful day for all off-reserve aboriginal people.”

In British Columbia, the decision is expected to impact thousands of non-status aboriginals and Metis people, said Lillian George, B.C. president of the United Native Nations Society, which represents status, non-status and Metis people.

The society represents about 60,000 aboriginals in B.C., of which 40 per cent are non-status and about 23,000 Metis who are not affiliated with the Metis Nation of B.C., which represents the majority of Metis in B.C.

According to the 2006 census, 196,075 British Columbians identified themselves as aboriginal. Nationwide that figure was 1,172,790 but only 564,870 people reported they were Registered Indians.

“It’s a major step. We’ll have a lot of excited Metis people across Canada and B.C. finally getting recognition they are identified as Indian,” said Dumont.

Vancouver Metis Leonard Laboucan said while his family has survived for generations without financial support from the government, he hopes the future will be easier for his three-year-old son Kyell.

“Certainly there are tax breaks (for Indians) but you have to live and work on reserve. And also there’s never enough education dollars to go around. My hope is more money will become available,” he said.

United Native Nations’ George said she also hopes the decision will force the federal government to look at its funding of all aboriginals across Canada.

She said in her own case, although she is a status Indian, she does not receive financial support from her band because it simply doesn’t get enough money to help support the status members who live off reserve.

“There’s a mindset of non-aboriginals who believe we get everything for nothing because we have a status card. I bought my house. I pay land taxes. If the government was handing out free money I missed the memo because I didn’t get mine ... maybe now the federal government will have to look at their funding for all aboriginals. We want what rightfully belongs to us,” she said.

“Immigrants coming into Canada get treated better and get more benefits than aboriginal people get.”

In his decision, Federal Court Judge Michael Phelan rejected the federal government’s attempts to maintain a narrow definition of who can be considered Indian.

He waded through centuries of aboriginal history to look at definitions of who has been considered Indian in the past, and how they were treated — by native communities and various levels of government.

The case for Canada’s 400,000 non-status Indians was more clear-cut than the case for the 200,000 Metis, but on balance, historical evidence weighs in favour of the Metis too, he wrote.

“The recognition of Metis and non-status Indian as Indians under section 91 (24) should accord a further level of respect and reconciliation by removing the constitutional uncertainty surrounding these groups,” wrote Phelan.

While the decision does not go so far as to declare the federal government has a fiduciary responsibility to the group, it says such duties would flow automatically now that their standing has been clarified.

“There is no dispute that the Crown has a fiduciary relationship with aboriginal people both historically and pursuant to section 35 (of the Constitution),” Phelan wrote.

However, he adds: “That duty is not an open-ended undefined obligation but must be focused on a specific interest.”

Legal experts expect the federal government to appeal the decision, partly because its implications are major and complex.

If left to stand, the ruling would affect a wide range of provincial and federal policies, said Robert James, a Victoria lawyer who focuses on aboriginal issues but was not involved in the case.

Governments would now have a duty to consult with non-status Indians and Metis on changes to law and policy, he said. And they will have to revisit the scope of their social services, economic development and protection for aboriginals.

“This is going to require a lot of bureaucratic re-thinking and policy development, and it’s going to be years of figuring this out.”

Until now, he said, many non-status or Metis people have grown up in households where their half-brothers and half-sisters on reserves have access to hunting and fishing rights or funding for post-secondary education — services they were denied because of their parentage.

Instead, they were told they were a provincial responsibility, only to have the provinces tell them they were the purview of the federal government — leaving a growing number of people in jurisdictional limbo.

The Congress of Aboriginal Peoples and several Metis and non-status Indians took the federal government to court in 1999, alleging discrimination because they are not considered “Indians” under a section of the Constitution Act.

They argued they are entitled to some or all of the same rights and benefits as on-reserve First Nations members.

They say that includes access to the same health, education and other benefits Ottawa gives status Indians; being able to hunt, trap, fish and gather on public land; and the ability to negotiate and enter treaties with the federal government.

The Congress and the Metis and non-status Indians involved in the case alleged in court documents that they’ve been the victims of “deprivations and discrimination” by the federal government.

The federal government had little to say Tuesday, but hinted it would consider an appeal.

“We are reviewing the court’s decision to determine the next steps,” said Jan O’Driscoll, spokesman for Aboriginal Affairs Minister John Duncan.

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